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Poster: Staraker Date: Jan 8, 2010 9:17am
Forum: feature_films Subject: Re: BritishKorda PD Films on Archive?

OK, I see what you're saying, but having located (unfortunately non-text searchable) PDFS of the 1911 and 1956 Acts, could you clarify a couple of points:

Regarding transitional provisions for the 1956 Act, the Seventh Schedule states:

"Cinematograph films

14. Section thirteen shall not apply to cinematograph films made before the commencement of that section.
15. Where a cinematograph film made before the commencement of section thirteen was an original dramatic work within the definition of "dramatic work" set out in paragraph 9 of the Eight Schedule to this Act (being the definition thereof of the Act of 1911), the provisions of this Act, including the provisions of this Schedule other than in this paragraph, shall have effect in relation to the film as if it had been an original dramatic work within the meaning of this Act; and the person who was the author of the work for the purposes of the Act of 1911 shall be taken to be the author thereof for the purposes of the said provisions as applied by this paragraph."

I don't see - or rather can't find - any text that tallies with your claim that, "under the transitional terms of the 1956 Act most films were upgraded to the 1956 terms of protection for cinematographic films," which the above text seems to contradict.

Regarding the transitional savings in the 1988 Act, the text (as it receieved Royal Accent, i.e. not subject to subsequent revisions) states:

"7 (1) No copyright subsists in a film, as such, made before 1st June 1957."

But continues:

"(2) Where a film made before that date was an original dramatic work within the meaning of the 1911 Act, the new copyright provisions have effect in relation to the film as if it was an original dramatic work within the meaning of Part I."

Looking at the 1911 Act, the following definition is given:

"'Dramatic work' includes any piece for recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise, and any cinematograph production where the arrangement or acting form or the combination of incidents represented give the work an original character."

It appears that the crucial distinction is between film as a physical object, as opposed to the "finished product" that various pieces of film are arranged in to create. It seems to me that if someone filmed a 20 second public street scene in 1915, under the 1911 Act that single piece of film would only constitute a series of photographs protected for 50 years after 1915. If, on the other hand, that 20 second sequence was included as part of a documentary or dramatic production, then the whole thing would be protected as a "dramatic work" for 50 years after the end of the year in which the "author" died.

Overall it would appear that it is only "complete films" made between the date the 1956 Act became law and when it was superceded by the 1988 Act (as amended) that were subject to publication plus 50 years. In these terms, I don't see any point at which 'Things to Come' - again as a specific example - as a "complete film" would have fallen into the public domain in the UK at any point. By way of contrast, if someone now uncovered an original camera negative of a "blooper" from the making of that film, it would have fallen into the public domain in 1985.

Incidentally, in your references to the Cinematograph Acts, I presume by "registration" you are referring to the submission to and certification of the film by the British Board of Film Censors/Classification? If so, it is misleading to state that, "it was illegal to screen without registration, so all films from 1927 onwards were registered," as this only applied to licensed public cinemas. Private club cinemas and indeed private individuals were free to show uncertified films (or the full versions of films cut in order to pass certification) with impunity.

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Poster: Video-Cellar Date: Jan 8, 2010 6:14pm
Forum: feature_films Subject: Re: BritishKorda PD Films on Archive?

By film registration I am refering to the process of registering films. From 1927 the first Cinematograph Films Act came into force which required the registration of films which was separate to the censorship certificate. Under the 1938 act, all existing films had to have registration in order to be published in public exhibition or to be made available to the public for showing in private settings. The acts were ammended on a number of occasions up until its repeal in 1960. It dealt with a content quota for British films, government assistance for the industry and a national register of films for publication. Censorship was controlled by separate legislation.

The fact that all published films had to be registered means that most films made before the commencement of the 1956 act fall within the wording of 13 3 (a), thus creating an anomoly between the act and its own transitional savings. This suggests that the transitional saving refers to films made before commencement but unregistered (either unpublished or unpublished since registration came into effect.)

In the case of "Things To Come", as the 50 year posthumous copyright term had begun, the film would still be subject to the terms of copyright under the 1956 act.

So, for "Things to Come":

Photographs made for hire - 50 years from taking = 1986

Authors of the Dramatic Work (Director and Writer) life + 50 years
William Cameron Menzies (1896-1957) Life+50 =2007
Herbert George Wells (1866-1946) Life+50 =1996

This would mean, under the standard claculations for copyright term for works of joint authorship the work entered the British public domain on 31 December 2007.

However, there would be a question as to whether a posthumous copyright already running at the enactment of the 1956 act would be calculated under the terms for works of joint authorship in the 1911 Act. The calculation therin was 50 years from the date of death of the first author to die or the actual date of death of the last surviving author, whichever occurred later. This calculation would place the date of entering the public domain as 31 December 1996, as W C Menzies died within the 50 years from H G Wells' death.

The copyright legislation suggests that this film entered the public domain in the UK either:

31 December 1986 (a registered film work under 13 3 a protected under the terms of the 1956 Act, also photographs and sound recordings contained in the film)
31 December 1996 (a dramatic work of joint authorship where the term was calculated under the conditions set out in the 1911 Act)
31 December 2007 (a dramatic work of joint authorship where the term was calculated under the provisions of the 1988 Act)

This post was modified by Video-Cellar on 2010-01-09 02:14:14

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Poster: Staraker Date: Jan 10, 2010 7:37am
Forum: feature_films Subject: Re: BritishKorda PD Films on Archive?

Obviously IANACL, but it seems to me that you're misinterpreting sections 14 & 15 of the Transitional Savings in the 1956 Act. To reiterate, the first specfically states: "Section thirteen shall not apply to cinematograph films made before the commencement of that section." It does not make any reference all to registration, so it is a big leap of you to suggest it only means unregistered films, thereby creating what you say is an anomaly. However, since section 15 then goes on to specifically state that a film falling withing the definition of a dramatic work under the 1911 Act remains a dramatic work under the new Act, the point is moot, and again there is no reference to registration status. This would seem to be entirely consistent with leaving the status of pre-1956 films effectively identical to what it was before the 1956 Act.

It would indeed seem that in the terms of the 1956 Act, copyright would have expired at the end of 2007. However when it comes to the 1988 Act, the Transition Savings clearly state:

"7 (1) No copyright subsists in a film, as such, made before 1st June 1957.
(2) Where a film made before that date was an original dramatic work within the meaning of the 1911 Act, the new copyright provisions have effect in relation to the film as if it was an original dramatic work within the meaning of Part I."

In other words, if the film is an "original dramatic work" - and I don't think anyone is disputing that it is - then it gets treated as such under the 1988 Act, both as it originally received Royal Assent, and as amended, i.e. at least 2007 and 2027 respectively. However, there is also the issue of Arthur Bliss's music. Since he died in 1975, we may actually be looking at 2045.

I hate to point out the obvious, but surely the bottom line is that the various pieces of legislation will have been pored over by lawyers for multiple concerned parties numerous times, and if the loopholes you are suggesting actually exist, then why are broadcasters and publishers in the UK failing to take advantage of them? If the early Korda films are in the public domain, one would expect to see numerous cheap releases on DVD, but we simply don't.

This post was modified by Staraker on 2010-01-10 15:37:32

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Poster: Video-Cellar Date: Jan 10, 2010 4:22pm
Forum: feature_films Subject: Re: BritishKorda PD Films on Archive?

Much of this doesn't effect the US status of the films in question which was what was originally the subject of this thread. The important issues there Are the lack of subject matter protection for films under UK law, the US definition of what a film is as a completed work (images and accompanying sounds) and the application of the relevant US definition of film within what UK law law would offer for the filmic elements protected under US law for the completed work in lieu of a specific UK film copyright. You would note that in the US market early British cinema is regularly exploited by public domain distributors and television broadcasters.

In answer to your question at the bottom I would expect that the reason is that the copyright regime in the UK is rife with misinformation, especially in regards to the status of copyright for films that fall beween the commencement of the 1956 and 1988 acts. Which ARE entering the public domain annually, to not much movement on the exploitation front. You have to remember that the "copyrights" to the vast majority of British films are owned by the major British broadcasters. ITV, BBC, Channel 4, etc all have substantial film catalogues. Many more British films are owned by a major French broadcaster, Canal. Most of the rest are owned by American Studios and independent and private concerns.

There is some evidence of similar material being made available widely on public domain releases in the UK including on DVDs from companies like Delta, Orbit. Each have carried 1930s and 40s British films. Orbit has no Korda films but does have Hitchcock's Rich and Stange, Young and Innocent, The Skin Game and Murder. None of which are licenced from either Canal or ITV. "Things to Come" seems to be available from Network (licenced from ITV) and E1 Entertainment (Unauthorised US colourisation licenced from Legend Films).

My interpretation of the copyright position for published films under the 1988 Act is:
1. For films published before 1 June 1957 is questionably either:
a) 50 calender years from registration (for registered films)
b) Authors under 1911 Act's lives + 50 years for published films were the posthumous copyright period had begun before the commencement of the 1988 Act.
c) Authors' under 1911 Act's lives + 70 calendar years for Published films where one or more author's were alive at commencement of the 1988 act.
2. For films published 1 June 1957-31 July 1989 is unquestionably:
50 calendar years from publication or registration (Schedule 1 12.2.e)
3. For films published after 1 August 1989 is unquestionably:
life of the last surviving principle author (Director, Composer, Writer) + 70 years.

If you need a clearer or definitive interpretation for films published or registered prior to 1 June 1957, I suggest that you seek out one of the lawyers who have studied the legislation for their interpretation.

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Poster: Staraker Date: Jan 11, 2010 10:38am
Forum: feature_films Subject: Re: BritishKorda PD Films on Archive?

Looking back, its seems the issue at the start of the thread is not so much American copyright status in isolation, but rather that the British status has a bearing on how the film is regarded in the US under GATT. I cannot agree with your claim that, "the copyright regime in the UK is rife with misinformation," since the relevent Acts, though complex, do seem clear, and I do not think the position for pre-1956 Act films is as ambiguous as you claim.

The 1911 Act classed filme as "dramatic works" and the protection was 50 years after the death of the first joint author to die - for Things to Come it's Wells, so we get 1946 + 50 = 1996.

The 1956 Act classed new films as "films," but maintained pre-1956 films as "dramatic works" under the 1956 Act, giving protection of 50 years after the death of the last joint author to die. If that's Cameron Menzies for Things to Come, then it's 1957 + 50 = 2007. I do not consider that you have proved your claim that pre-1956 films classed as "dramatic works" under the 1911 Act became "films" under the 1956 Act by virtue of whatever their "registration" status was.

When we come to the 1988 Act (as it received Royal Assent), Schedule 1 ("Copyright: transitional provisions and savings") clearly states that pre-1 June 1957 films are protected as "dramatic works" under the terms of the 1988 Act, so again year of last author to die plus 50 years, i.e. 2007 for Things to Come.

Under the 1995 EU harmonisation rules, duration for dramatic works was bumped from 50 to 70 years, so we get 2027 for Things to Come, but there may be the question of whether Bliss would count as a joint author, thus another 18 years.

It is fairly obvious that earch piece of legislation builds upon and consolidates everything previous to it. The 1956 Act maintains the 1911 Act's provisions for pre-1956 films, but then applies more restricted protection to new productions. The 1988 Act again effectively preserves pre-1956 films to provisions identical to the 1911 Act, but also maintains the more restricted provisions of the 1956 Act for 1956-1988 films, as well as post-1988 films. The 1995 Regulations gave post-1988 films the current more expansive protection, but they also restrospectively extend the 50 year term to 70 years for literary and dramatic works, the latter by definition including pre-1956 films. The only real "anomaly" is that 1956-1988 films are stuck at publication + 50 years.

I do not think the examples you offer constitute proof of, "similar material being made available widely on public domain releases in the UK...." (my emphasis). In the case of "Orbit Media Ltd" specifically, I see that they are indeed selling a "Hitchcock Double Bill" containing Rich and Strange and Young and Innocent with BBFC classifications on the cover, and yet - strangely - there is no record of either the joint title or the specific films being submitted by Orbit to the BBFC on their database. The Skin Game and Murder!, on the other hand, were classified in 2005 for Orbit, but they do not seem to be selling them anymore.

The Network release was indeed licensed from (as it was at the time) Granada Ventures, as was the DDHE one a couple of years previously. The E1 release is not licensed, but appears to be an "honest error" on the part of the publishers. E1 in the UK was formerly the Contender Group until it was bought out by E1 in the US, which was formerly Koch. The latter distributes for Legend films, which claims much of its output as derivitives of material that was previously PD in the US.

In the principles of transparency I should, of course, declare an "interest" in the Network release, since I provided the booklet text, commentary, and most of the extras for it. However, I was paid a flat fee for that work, so there is no advantage or disadvantage to me if any effect sales of the very much inferior E1/Legend product - or any other claimed "PD" product - may have on it. Since I maintain a website resource on the film, it would actually be great for me if it was public domain, as I could include video content, but looking at the various Acts I do not genuinely believe that it is, and am not convinced by the previous arguments put by you that suggest it became PD at any point, in particular your claims that pre-1956 films changed from being "dramatic works" under the 1911 Act to "films" under the 1956 Act when the latter sepecifically states that they're still "dramatic works." In that context, that the 1988 Act maintains the status of "films" under the 1956 act has no bearing on pre-1956 films, since they're still "dramatic works," and therefore their protection was increased from 50 to 70 years.

I must say that I find you final suggestion somewhat disingenuous. If I was in the business of selling films under the claim of them being in the public domain, or even just uploading them to this or any other site on the same basis, I would be the one in the position of having to legally justify such actions. It is my opinion that Things to Come is not and never has been PD in the United Kingdom, but that opinion does not provide any justification for me to do any particular thing that I desperately want to do. On the other hand, anyone wanting to take advantage of what they claim to be the PD status of any film has more of a responsibility to prove their case.

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Poster: Video-Cellar Date: Jan 12, 2010 2:11am
Forum: feature_films Subject: Re: BritishKorda PD Films on Archive?

On the issue of misinformation in copyright in the UK, the public line of the copyright industry in the UK is that all films regardless to when they were published are protected under the current regime. I consider this "misinformation", spread mostly by the major copyright interest groups (FACT, etc.) One has to do independent research looking directly at the legislation to find that films made before 1 August 1989 are not covered by the current term calculation.

Any question I answer on this site with regards to the the public domain status of a work is in terms of US law. This is a US site and US law governs it.

Even if you are correct about the term applied to films made before the commencement of the 1956 Act, the fact remains that few British films made and published before 1946, whose copyright had lapsed (or was never secured) in the US before 1996, are eligible for URAA restoration of copyright. Regardless of the term you apply to pre-1957 films, it is simply a matter of the lack of approriate copyright protection for films as a completed work under UK law that prevents restoration.

The URAA offered US copyright protection to certain foreign works that had fallen out of copyright due to lack of adherence to US formalities if the works met all of the below requirements:
1. The work was first published in a foreign country and not published in the US within 30 days of that publication.
2. At least one of the authors of the work were a resident of a foreign country for which protection is extended.
3. The published work is the subject of copyright or neibouring rights in its country of origin at 1 January 1996.

Under the wording and meaning of British Copyright legislation, completed films published before 1 June 1957 are "not protected by copyright, as such" much like radio and television broadcasts. Instead, these films are protected by a combination of underlying rights in the dramatic work and/or photographic images. Under US law, completed films are given copyright which includes all visual and sound elements that make up a film. The underlying elements, if original to the film, are not offered an effective separate copyright unless it is registered and/or published before the completed film is published.

Take for example "Things To Come". The film was published in the UK more than 30 days before the US (February 1936 UK, April 1936 USA). So it qualifies on point one. The film, under US law, is a work for hire and does not have an author so point two is mute.

It is on point three that "Things" runs into a problem. Under US law, a published film is protected as a corporate work and all images and sounds contained therein are protected within the copyright. No such copyright existed for films published in the UK at that time.

At its most generous, US copyright would have protected the sounds and images in the film, however, the copyright in these HAD lapsed in the UK almost a decade before the beginning of 1996. There is no scope within US law for a completed motion picture work to be protected as a dramatic work or performance. Which is the only avenue under which it could be protected under UK law. This is why the two dozen or more releases of "Things To Come" currently available in the US are legal. This is also why the USCO granted copyright protection to Legend Films' colourisation.

Ultimately, it is the fault of British copyright legislators that this film and many others remain in the US public domain. If the relevant transitional savings related to pre-existing films had been removed from the 1988 act, like so many others were removed by the 1995 term extension regulations, the Pre 1 June 1957 films would have been protected under the current film copyright regime. Which would have afforded film copyright protection under URAA.

And just a clarification. It is films published between 1 June 1957 (the commencement of the 1956 Act) and 1 August 1989 (the commencement of the 1988 Act) that are subject to a flat 50 year term of copyright, not 1956-1988 films.

On the issue of the Orbit Media DVDs all reports I've read in the UK suggest that their DVDs are available in many "high street stores" specialising in DVD accross the country. And on the BBFC, do you actualy have to get a film classified each and ever time it is released in Britain? Here in Australia if you are re-releasing a film that is the subject of a previous clasification you don't have to reapply, as long as you are not adding new, non-exempt material. Saves us public domain dvd distributer types about $1000 per DVD release in classification fees.

This post was modified by Video-Cellar on 2010-01-12 10:11:46

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Poster: Staraker Date: Jan 12, 2010 4:49am
Forum: feature_films Subject: Re: BritishKorda PD Films on Archive?

Without seeing specific examples of the claims you refer to, I'm not sure how far it can be judged to be "misinformation," although would acknowledge that FACT in particular are no strangers to putting a questionable "spin" on much of what they say publicly. That said, I think it's a bit simplistic of yourself to say that, "films made before 1 August 1989 are not covered by the current term calculation," since it is clear that pre-1 June 1957 films seem to be covered along very similar lines to those post 1 August 1989; it is only those falling between those two dates that have a significantly different status.

Obviously this is a US site and use laws prevail, but there is a grey area that users based in the UK - for, for that matter, any other country where US PD films are still in copyright - can still use it, whether for uploading or downloading. In essence this is the civil law equivalent of the criminal implications of contempt of court and libel that crop up with UK-based Wikipedia editors, etc.

You seem to have changed tack slightly, now claiming that pre-1957 films aren't eligible for URAA protection because they're not protected by specific film copyright in the UK, but rather as something else, i.e. "dramatic works." This, I think, is the point on which many lawyers would make a lot of money, but in essence it seems like taking advantage of a loophole contrary to the spirit and intentions of the URAA.

On a personal note, it would seem that although I was always prepared to claim "fair dealing" for the gallery of Things to Come production stills on my website, it's nice to discover that they're actually out of copyright now!

When I refered to "1956-1988 films" by the dates I meant - for the sake of brevity - the Acts, not the actual effective dates. Apologies is this was open to misinterpretation.

Sorry, I should have been more clear as regards the reference to the BBFC. Under the 1984 Video Recording Act it is required that every video release has to have a separate certification. Even if the contents of a new release by a different publisher are the same as a previously-certified version, it has to be re-certified. This is, of course, all money into the BBFC's pocket.

"Supplying" (not just sale, but loaning, gifting, etc.) an uncertified title is a criminal offence, as is supplying an age-restricted title to someone below whatever age it is. Documentaries and music videos can claim exemption, but the vast majority of releases cannot. Last year, however, it was realised that due to an oversight, the law was not enforcable, although there had previously been many prosecutions. Pending prosecutions were dropped, but there were no plans to quash previous convictions, and the government has signalled an intention to reintroduce the legislation properly as soon as possible, so the BBFC is still classifying releases, and retailers are voluntarily enforcing age restrictions. The issue as regards Orbit is that until that news broke, supply of the Hitchock double-bill would have been regarded as illegal, and it will be when the legislation is reintroduced. As noted, they did submit the other two Hitchock films, but one would have to look into the matter further to see if the uncertifed double-bill is unqiue or not. It may be an honest oversight by Orbit, but it does call into question the professionalism of their operations.

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Poster: Video-Cellar Date: Jan 12, 2010 6:01am
Forum: feature_films Subject: Re: BritishKorda PD Films on Archive?

I'm not sure that it is really taking advantage of a loophole in the law against the spirit of URAA. The URAA seems to have clear qualifications built in. They seem to be designed to prevent many works from being restored.

Even at the earliest part of last century many copyright works were first published concurrently in the US and UK. I believe Korda's "Divorce of Lady X" was published in the US about a week after its UK publication. I am sure there are many other examples like this. The nationality qualification is fair, otherwise URAA would be open to misuse by US nationals whose works were first published abroad, and the copyright or related rights provision is pretty important to the integrity of the restoration process.

When I looked back on my original copyright research and advice I found that I was arguing the wrong point. While some of the advice I received was that there is room to interpret 13.3.a in the 1956 Act, when coupled with the the wording of Schedule 1 -12.2.e of the 1988 Act, as including films made and registered before the 1956 act, I accept that this is widely open to debate. Films protected as dramatic works made before the 1956 act are most likely protected in the UK for life of the writer and directors + 70 years, unless published posthumously before the commencement of the 1988 Act where they would have been copyright for 50 years from publication. While this is similar to the current copyright regime. It is not the same.

I should have looked more closely at my notes and I would have seen my original rationale for the US public domain status of the films. The information I had was that the lack of copyright protection as completed films was the reason GATT/URAA restoration couldn't apply. I have looked back at the original information I had and have corrected myself.

As to FACT, I don't have any specific material from them, but they seem to be the prevalent industry voice. I often find in forums that most British users expect that the life of the last surviving Director, Composer, Writer and Cinematographer plus 70 years is the across the board determiner and say that they got this information from a FACT info sheet. They seem genuinely shocked to learn that many of the first three years worth of Hammer horror movies are, at least by definition, public domain in the UK.

I am sure FACT say some wild things. Their Australian counterpart AFACT has been known to say things like "if a dvd contains more than one similar movie or movies from the same series or featuring the same actor, than it's probably a bootleg." Not only does that target bootlegs, it attacks the predominant method for releasing PD films around at the moment and even treads on the studios' tendency to repackage returns as themed discount multi packs. It sometimes makes you wonder who they're working for. It seems to me that their main line is that copyright is essentially perpetual and that there is no such thing as a legal release of any film if it is not authorised by the original copyright owner.

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Poster: Staraker Date: Jan 13, 2010 6:47am
Forum: feature_films Subject: Re: BritishKorda PD Films on Archive?

As I said, I think in many respects the UK protection for pre-1956 Act films is as close to post-1988 Act films so as some degree of simplification can be forgiven. They real eye-opener is the status of those films that fall between the two, which clearly are progressively falling into the public domain with each year. Unless there are any significant change in the legislation, I guess come 2039 we will have the bizarre situation that every one of those films is PD, yet some pre-1956 Act ones will still be in copyright for many decades after. Yangtse Incident, for example, was released two months before the effective date of the 1956 Act, but director Michael Anderson is still alive now.

Sounds like there must be close co-operation between FACT UK and AFACT! If you have a look at the former's "Is my DVD Genuine?" page below, the PDf makes some similar claims. The statement that, "No legitimate DVDs are sold in 'ALL' Zone Region codes" is, of course, a blatent lie. It's notable that in the past to deal with pirates, FACT has relied heavily on the legislation mentioned previously that was thought to make sale of un-certified titles a criminal offence in itself, rather than any actual copyright infringement.